Friday, March 24, 2017

Islam for Muslims or Islam for all?

S Thayaparan     Published     Updated
“Be not intimidated... nor suffer yourselves to be wheedled out of your liberties by any pretense of politeness, delicacy or decency. These, as they are often used, are but three different names for hypocrisy, chicanery and cowardice.”
- John Adams

I was sincerely trying not to write another article on Islam. Every time I write an article on Islam I get the usual hate mail from folks who accuse me of being anti-Islam and anti-Malay. The people who email me are not bad people. Far from it. If you define “good” as opposing Umno and corruption, then these folks fall into the category of “good” as defined by oppositional forces. Personally, I think this is a crappy definition of good but it takes all kinds, right?

Lawyer Aidil Khalid said something in a debate organised by Bebas recently that demonstrates why this country is ultimately doomed. Forget about the fact that non-Muslims are losing the demographic game but this idea of co-existence and mutual gain is anathema to mainstream Islam. If people wonder why when most people migrate they do not want to go to places where there is a Muslim majority, then you have to look no further than the idea espoused by Aidil Khalid.

"And we do not even want to impose it (syariah law) on the non-Muslims. It is only for Muslims," Aidil said. On the face of it sounds reasonable. However, is it really? What these Islamists are doing, and they do this everywhere, is make a clear distinction between "us" and "them". They are proud of the distinction they attempt to make but get all butt hurt when Western governments attempt to do the same.

Let me be very clear. There is enough empirical evidence that laws solely meant for Muslims in this country have a direct impact on non-Muslims hence this separate but equal canard is just another example of how mainstream Islam in this country always attempts to subvert democratic principles in the name of Muslim solidarity and hegemonic power.

Some folks got extremely upset when Aidil claimed that Muslims have not complained when they have been subjected to civil laws which have a “Christian” influence. While this statement is inaccurate for many reasons, the intent behind the claim points to an anti-Western bias rooted in Saudi Wahhabism and drenched in hypocrisy.

Let us unpack this statement, adding a couple of other points that this young lawyer made. Here are the three points he made:
1) Muslims have not complained about the Christian-influenced civil laws.
2) That interpretation of the Federal Constitution should be based on our traditions.
3) The right of states to “debate, enact and pass matters on Islam".

The first statement is utter bunkum because we have a dual track system when it comes to certain civil laws. Over the years, and with the Arabisation process, state religious departments have encroached in the legal and social domains of Malaysians and have used anti-Western rhetoric to bolster claims of Malay/Muslim nationalism and to maintain political hegemony.

This brings us to the second point. What exactly are “our” traditions? Who defines these traditions? I doubt Aidil when he talks about traditions he means a Malaysian culture that should be inclusive and accepting of diversity as guaranteed under our Federal Constitution.

What he most probably means is the traditions of the dominant Malay majority. Fair enough. However the problem here is that Malay culture has evolved over time. The Malays of today are different from the pre- and post-colonial Malays.

Social engineering, the influx of foreigners and decades of the Arabisation process has made it clear that mainstream Malay culture and traditions is in fact a replica of Saudi culture or at least that is the eventual goal. “Malay” tradition and cultural norms have over the years been replaced with Wahhabi imperatives that seek to extinguish the various cultural influences that made Malay culture and traditions such a melting pot of Southeast Asian influences.

Hence if we know that Wahhabism is the dominant Malay culture, then what this young lawyer is advocating is that those so-called traditions of those interpreting the Federal Constitution should rely on is in fact a foreign Islamic ideology that the Saudis themselves are claiming to curtail.

Deviant thinking

However, let us for one minute think it is okay to rely on such interpretations. Let us assume that Islamic jurisprudence is an acceptable source of law for all of us. Let us go back to the so-called golden age of Islam, that era where most rational Muslims use as a touchstone to promulgate the idea that theirs is in fact a forward-thinking religion.

Do you know of any Muslim Malaysian scholars who advocate such a position? I do. I could name many but these folks are sanctioned by the state for deviant thinking. Deviant from what, you may ask? From standard, Wahhabi thinking.

People like Aidil always reminds us that “interpretations of Islam and the Quran should be left to scholars who have spent entire lives dedicated to understanding the religion”, but when confronted by voices other than the ones approved by the state, these scholars suddenly lose their Islamic credentials.

Here is an opinion of someone who has had a formal education when it comes to the intricacies of Islam, Wan Ji Wan Hussin - “I don’t agree that only Islam can be propagated. The Federal Constitution states that, but I don't agree with it from the viewpoint of religion. Let the law practitioners debate if it’s from the law’s point of view. But as someone who studied religion, that statement is wrong. Non-Muslims should be given the right to give their views, as opposed to only the Muslims who can do so. Maybe that's why people have accused me of being ‘liberal’.”

Does this sound like something Aidil can get behind or is this one of those situations where this Islamic scholar suddenly loses his Islamic credentials? I have often argued that the only way we can stop the process of sliding into a failed Islamic state is when we have diversity of thought when it comes to Islam. The main reason why the state wishes to silence dissenting voices is that they are a threat to religious, but more importantly, political hegemony.

However, the last point is where the action really takes place. I am a firm believer in constraining federal power. So my question to this young lawyer is, what if a state decides that it is unIslamic to discriminate based on race and religion? What if Islamic authorities in a particular state decide that there should be a separation between mosque and state? What if the state’s Islamic authority decides that there no need for a local Islamic authority?

Would this young lawyer be still gung-ho on state rights or would this just be another case, where the state loses its Islamic legitimacy because it goes against the federal-approved form of Islam?

That Malaysian original Haris Ibrahim at the Bebas debate said that he would not have the Islam he believes in taken away from him. The tragedy is that his version of Islam is anathema to mainstream Malaysian Islam.

S THAYAPARAN is Commander (Rtd) of the Royal Malaysian Navy.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

Sarawak BN objections may doom Act 355

Terence Netto     Published     Updated
COMMENT Prime Minister Najib Abdul Razak could not have reckoned with the objections of BN component parties in Sabah and Sarawak to Act 355 when he announced last November that Umno would “take over” PAS president Hadi Awang’s private member’s bill to further empower Syariah courts.

Earlier this week, in a meeting with leaders of these parties, he was taken aback by the near unanimity of their resistance to the Umno move.

The fate of Act 355 - the popular shorthand for the bill initiated by Hadi in May last year and left ever since in a kind of suspended animation until the PM threw the weight of his office behind it - continues to be uncertain.

The current sitting of Parliament, supposed to end on April 6, may be extended a few days to enable the tabling of the bill.

However, the prognosis is that Umno is going to find it very difficult to conjure away the objections of the Sarawakian parties, in particular, to it.

What would it take for the Sarawakian BN parties to drop their resistance to Act 355 was Najib’s plaintive request of his interlocutors at the meeting, after his surprise at their intensity had worn off?

Exemption for Sarawak and Sabah, and for their people resident on the peninsula to its provisions, the PM was apprised in no uncertain terms.

Ironically, such exceptionalism would undermine the very argument that the Borneoan objectors to the Bill had relied on in their fulminations against it.

This was Act 8 of the Federal Constitution, which posits as a fundamental tenet, the equality of all citizens under the law. Act 355, which differentiates between Muslims and non-Muslims, would founder on the equality before the law tenet embedded in the Federal Constitution.

In other words, an exemption from the very basis on which the Borneoan parties had erected their case against Act 355 would be grounds for their acquiescence to the bill.

Of course, this stance is a philosophical non sequitur; its absurdity is enough to given a sense of the contortions Act 355 would have to undergo to persuade the Borneoans to come round to supporting it.

A political hot potato

Hence, based on what transpired at the meeting of the BN Borneoan component party leaders and Najib, Act 355 remains a political hot potato.

Its potential to split the BN is a threat just when fissures among the slew of opposition parties ranged against the ruling coalition are considered serious enough to prevent them projecting a unified stance in the coming general election (GE14).

The Umno-dominated BN’s chances of winning GE14 are enhanced by splits in the opposition.
Conventional wisdom has it that the seasoned pragmatists of Umno would not have boxed themselves into the corner they now find themselves in with respect to Act 355.

To prevent PAS from making common cause with the rest of the opposition at GE14, Umno’s support - which has asecended to sponsorship - of Hadi’s bill is the price that has to be paid.

It has been an article of faith with PAS that they are the indisputable repositories of all that is Islamic in the country. In that vein, they have come to regard Act 355 as a prized emblem of their rectitude.

But increasingly it seems that Umno’s support can only be given to PAS by a willingness to risk a split in the BN.

Although insistent, the objections to Act 355 from the peninsula’s non-Muslim BN component parties - MCA, MIC and Gerakan - are seen as somewhat malleable which was why the meeting between the PM and federal BN’s Borneoan cohort was crucial in establishing the extent of the risks Umno would be taking by a decision to chaperone Act 355 through the Lower House.

Borneoan, particularly Sarawakian, resolve against Act 355 will bolster the objections to it of non-Muslim parties on the peninsula.
 
What’s more, it would stiffen the otherwise tepid objections that Muslim MPs in opposition parties like PKR and Parti Amanah Negara have against it, not to mention latent reservations about the Act by mavericks in Umno such as Tengku Razaleigh Hamzah.
In sum, Act 355 has all the makings of a political misadventure whose extent we would soon get to know.

TERENCE NETTO has been a journalist for more than four decades. A sobering discovery has been that those who protest the loudest tend to replicate the faults they revile in others.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

Strengthen the independence of the judiciary

George Varughese     Published     Updated
The Malaysian Bar welcomes the news that the cabinet has approved the proposal by the Chief Justice of the Federal Court of Malaysia, Yang Amat Arif Arifin Zakaria, to have a separate head for each branch of the Judicial and Legal Service Commission (JLS Commission).

The JLS Commission consists of the chairperson of the Public Services Commission - who sits as chairperson - with several judges and the attorney-general.

The JLS Commission exercises jurisdiction, and consequently control, over legal officers as well as judicial officers in all matters governing their service, promotion, discipline and transfer, including their removal from office.

Judicial officers comprise, in general, magistrates, senior assistant registrars, deputy registrars, Sessions Court judges, and the chief registrar. Legal officers, on the other hand, comprise deputy public prosecutors, state legal advisers, legal advisers (to the ministries, government departments and its agencies), the solicitor-general, Treasury solicitors, federal counsel, and senior federal counsel.

There is a tendency for judicial officers to be transferred to the legal department, and likewise for legal officers to be transferred to the judiciary. This susceptibility of judicial and legal officers to being transferred from one department to the other raises concerns about the independence and impartiality of judicial officers who are part of the judiciary.

Arifin’s proposal is for legal officers to be headed by the attorney-general, as they currently are, and for judicial officers to be headed by the chief registrar of the Federal Court.

As Arifin rightly pointed out, a conflict of interest occurs whenever a prosecutor or the attorney-general appears before a judicial officer. Since the attorney-general is also the public prosecutor, and has supervision and control over judicial officers of the Subordinate Courts, there could be a likelihood of bias in the decision-making of the judicial officers.

Furthermore, the judicial officer may be of a lower rank than the prosecutor, and may thus feel some apprehension at delivering a judgment that is not favourable to the prosecution. A judicial officer’s independence may, in this manner, be compromised or be seen to be compromised.

Judicial officers are distinct from judges of the Superior Courts (ie the Federal Court, the Court of Appeal and the High Court), in that they do not enjoy security of tenure, but are subject to same terms of employment as public service officers, even though they perform the same functions as judges of the Superior Courts.

Judicial officers are thus in a less secure position of employment, and their independence may be affected by their perception that their decisions may place their employment in jeopardy.

Arifin’s proposal would eliminate the prospect or appearance of bias, strengthen the independence of judicial officers, and promote public confidence in the judiciary.

Arifin’s proposal would require amendments to Article 138 of the Federal Constitution. The Malaysian Bar stands ready to offer any legal assistance in this matter, in the belief that the adoption of the proposal is necessary to uphold the independence of the judiciary and the doctrine of separation of powers.

GEORGE VARUGHESE is president, Malaysian Bar.

Monday, March 20, 2017

Baru concurs with Abg Jo on concerns over proposed amendment to Act 355

Baru (right) speaks during the press conference to announce the formation of Pakatan Harapan Sarawak. Looking on are (from left) PKR Sarawak vice chairman See Chee How, Amanah Sarawak chairman Fidzuan Zaidi and Chong.

KUCHING: PKR Sarawak chairman Baru Bian supports the concerns raised by Chief Minister Datuk Amar Abang Johari Tun Openg on the discriminatory and unconstitutional elements in the proposed amendment to the Syariah Courts (Criminal Jurisdiction) Act 1965 (Act 355).

DAP Sarawak chairman Chong Chieng Jen, on the other hand, opined that Abang Johari’s statement that he would leave it to Prime Minister Datuk Seri Najib Tun Razak to tackle the concerns raised as being ‘a bit ambiguous’.

Baru, who is Ba Kelalan assemblyman, said Abang Johari was right to be concerned about the discriminatory and unconstitutional elements.

He also applauded the Chief Minister’s misgivings with the Prime Minister about the constitutionality issues with the Act 355 Bill with respect to equality for all under Article 8 of the Federal Constitution.

“We cannot accept Shariah law, for Malaysia already has a supreme law, which is the Federal Constitution. Article 4 of the Constitution declares it simply: ‘This Constitution is the supreme law of the Federation’,” Baru said.

The Act 355 Bill, also known as RUU355, is expected to be tabled and debated in the current parliamentary meeting, and a vote may be called for it to be passed.

Parti Islam SeMalaysia (PAS) president Datuk Seri Abdul Hadi Awang had last year tabled a Private Member’s Bill to seek the amendments to Act 355 to enhance the punishment meted out by the Syariah Court.

The bill proposes to increase jail term from the present maximum of three years to 30 years; fine of RM5,000 to RM100,000 and the present maximum six lashes of cane to 100 lashes.

The Kelantan State Legislative Assembly had passed an amendment to Kelantan’s Syariah Criminal Code 1993 in 2015 but it could not enforce it due to Act 355.

Hadi’s Bill has been met with strong opposition from non-Muslims for fear that once passed, it will pave the way for the implementation of hudud in the nation.

Due to the strong opposition from other BN component parties such as MCA and MIC, Umno which is supportive of the bill decided to take over it and table it as a government bill.

Sarawak Barisan Nasional parties — Parti Rakyat Sarawak (PRS) and Sarawak United People’s Party (SUPP) — have said that they would instruct their federal lawmakers to vote against the Bill.

Baru hoped all Sarawak MPs have the courage to reject Act 355 if it is tabled in Parliament, saying there must be no absences, convenient ‘meetings’ or urgent ‘official trips’ that require them to be away from Parliament should the Bill be tabled and presented for voting.

He said they must be present to vote against the Bill to carry the Sarawak conscience and the aspiration of the country Malaysia is meant to be.

“Let the Hansard show that Sarawakian MPs have the courage and the conviction to stand up and be counted when it matters most.

“At the same time, Chief Minister Datuk Amar Abang Johari Tun Openg must instruct all Sarawakian MPs to be present in Parliament when the Bill is tabled and debated, and to vote against it,” he said.

He pointed out it is crucial that Sarawakians stand together to defend the rights which they secured under the Malaysia Agreement 1963, the Malaysia Act, the pre-formation documents and the Federal Constitution.

“Hadi Awang and Umno may say this is Syariah and not hudud, but as far as I understand it, hudud is part of the Syariah and the proponents had said this bill was to pave way for hudud punishments in Kelantan. This attempt at RUU355 is but a political contest between Umno and PAS to champion the implementation of Syariah Law in Malaysia,” he said.

Meanwhile, Chong who is also Bandar Kuching MP, said all the five MPs from DAP Sarawak have been assigned to watch over the 25 Sarawak MPs when the Bill is put to vote.

“We will play our part on what actually transpires during the crunch of the matter – that is the voting time for the Bill,” he said.

~ Borneo Post

Opposition puts on united front with Pakatan Harapan as GE14 looms

DAP, PKR and Amanah leaders join hands after the announcement of Pakatan Harapan Sarawak. Seated from left are Stampin MP Julian Tan, Batu Lintang assemblyman See Chee How, Fidzuan, Chong, Baru, Padungan assemblyman Wong King Wei and DAP’s Chong Siew Chiang.

Pakatan Harapan Sarawak to take on Barisan Nasional in coming general election

KUCHING: DAP Sarawak, PKR Sarawak and Amanah Sarawak have officially formed a coalition called Pakatan Harapan Sarawak to take on Barisan Nasional (BN) in all the 31 parliamentary seats in the state in the coming 14th General Election (GE14).

However, PAS Sarawak, which was previously a component member of the old opposition pact known as Pakatan Rakyat, is not included in the new alliance.

In a joint press statement, DAP  Sarawak chairman Chong Chieng Jen, PKR Sarawak chairman Baru Bian and Amanah Sarawak chairman Fidzuan Zaidi also said they have concluded seat allocation negotiations between the three parties for the GE14.

“Basically, the agreement is that, in GE14 the respective parties will contest the parliamentary seats previously contested by each of them in GE13, with Amanah to contest those seats previously contested by PAS.

“There may be some variations but that will be subject to mutual agreement of the parties involved. Failing any mutual agreement, we will fall back to the arrangement that the party which contested that particular seat in GE13 will contest the seat in GE14,” they said at the joint press conference held at DAP Sarawak headquarters here yesterday.

They also said the three parties have set up a secretariat consisting of two representatives from each party.

From DAP Sarawak are secretary Alan Ling and youth chief Wong King Wei; PKR Sarawak representatives are secretary Nicholas Bawin and assistant secretary Lynette Tan; and representatives from Amanah Sarawak are secretary Abang Halil and youth chief Fadhilah Sabali.

“The secretariat will co-ordinate activities and cooperation amongst the three parties and shall be responsible for the drafting of Pakatan Harapan Sarawak’s joint manifesto for GE14,” they added.

They also said they are open to and welcome other opposition parties who are true to their cause. “GE14 shall be the most important general election in the history of Malaysia. It shall be the time to save Malaysia from the fate of a kleptocracy nation and to save all Malaysians from the economic disaster that BN has pushed us into.

“Malaysia and Malaysians cannot afford to give Datuk Seri Najib Tun Razak and the BN another five years. Change, we must, for the future of our children and the country. Therefore, we Pakatan Harapan Sarawak shall do our best to work together to change the government and the country.” they said.

In GE13 held in May 2013, PKR contested in 15 seats but only won one seat – Miri. DAP contested in 11 seats and won five – Bandar Kuching, Stampin, Sibu, Lanang and Sarikei. Amanah was not formed yet at that time, but it will contest the five seats previously contested by PAS. There are a total of 31 parliamentary seats in Sarawak.

Meanwhile, Chong who is also Bandar Kuching MP brushed aside talks of seat swapping among Pakatan Harapan Sarawak components taking place at the moment, stressing that seat allocation would remain the same.

Baru, on the other hand, indicated that he will not contest in GE14 although he stood but lost to the BN incumbent in Limbang in GE13 four years ago. But the Ba Kelalan assemblyman stressed that PKR Sarawak does not lack qualified people to stand as candidates in GE14.

“We have submitted a list of candidates to (national leaders in) Kuala Lumpur. I am ready to support,” he said.

On behalf of Amanah Sarawak, Fidzuan thanked the other components for including them in Pakatan Harapan Sarawak which he hoped would be seen as a ‘new hope’ and alternative to BN for voters in GE14.

~ Borneo Post

Wednesday, March 15, 2017

Sarawak timber firm loses 30-year case over timber concession

 | March 15, 2017

Federal Court rules that High Court was right in deciding that former chief minister Abdul Taib Mahmud need not give evidence during trial.
Gopal-Sri-Ram_law_taib-mahmud_600
PUTRAJAYA: A 30-year court battle and probably one of the longest civil cases to be decided has finally come to an end for a Sarawak timber company.

The Federal Court today dismissed an appeal by Keruntum Sdn Bhd against the Sarawak government for revoking its 25-year licence to extract timber.

The agreement to log over 188,926ha would have expired in October 2008.

During the trial in the High Court, the company claimed the decision to revoke the licence was politically motivated.

This was related to what is known in Sarawak political history as the “Ming Court Affair”, which occurred in March 1987.

What happened was that the late Sarawak chief minister Tun Abdul Rahman Yaakub led a group of state assemblymen of the Sarawak legislature and their allies to topple incumbent chief minister Abdul Taib Mahmud, who was also the minister of resource planning.

That attempt failed as the chief minister dissolved the state legislative assembly and caused an election in which Taib and his party were returned to power to form the state government.

In that election, BN secured 28 seats and the opposition 20.

Justice Hasan Lah, who delivered the judgment of the five-man bench today, said the apex court found no reason to disturb the finding of facts by the High Court.

“There is a concurrent finding as the Court of Appeal has held that the trial judge had not erred in facts and law,” he said.

Others on the bench were Chief Justice Arifin Zakaria, Zainun Ali, Abu Samah Nordin and Aziah Ali.

Hasan said the High Court was also right in deciding that Taib, one of the defendants in the suit, need not give evidence as the plaintiff had not proved its case.

“There was no necessity to call the minister of resource planning (Taib) as witness when Keruntum could not prove its case,” he said.
Hasan said as such, the Federal Court need not answer a legal question posed whether Taib had committed the tort of misfeasance in public office (abuse of power).

Taib, who was chief minister between 1981 and February 2013, had refused to give evidence in court during the trial.

He was appointed the 7th governor of Sarawak on March 1.

The company, represented by Gopal Sri Ram, had submitted that Taib had maliciously directed the cancellation of Keruntum’s licence on grounds that Rahman had conspired with several other assemblymen to unseat Taib.

He said the company was associated with Rahman, who is also Taib’s uncle.

Keruntum had filed a judicial review in 1987, naming the Sarawak Forest Department, Taib and the state government as respondents.

The High Court allowed the review and quashed the revocation. This was upheld by the then Supreme Court in 1988.

However, the company’s licence was revoked for the second time in 1988. It had been in business since 1983.

Keruntum later filed a civil suit in 1990 and serious charges of malice were made against Taib.

~ Free Malaysia Today

Natives lose NCR land case against S'wak Forestry Dept

Hafiz Yatim     Published     Updated
Just because six natives from the Kelabit, Lun Bawang and Penan tribes had re-settled at another area, the Federal Court today ruled they are not entitled to a claim made against four timber companies, the Sarawak Forestry Department and the state government for encroaching into their purported Native Customary Right land.

In allowing the appeal by the timber companies and the state government in Putrajaya today, the five-member bench led by Chief Justice Arifin Zakaria cited the Bisi Jinggut case, which ruled that when once abandoned, whatever NCR land that is created or acquired would have been lost.

The unanimous decision was written by Federal Court judge Justice Balia Yusof Wahi in the Racha anak Urud case today.

Racha, along with Edison John Urud, Jalung Jok, Menit Along, Agung Taie and Wilfred S Lasong had their case struck out by the High Court, only to see it reinstated by the Court of Appeal.

Justice Balia said what was vital was the continuous occupation of the land, that is occupying the land as with their forefathers had done before.

“It is found that they abandoned their NCR land and their claim to the NCR land came after the resettlement,” he said, adding that they had re-settled in their villages nearly 40 years and that the claimants no longer possessed the land where the logging activities had commenced 20 years ago, before this suit was filed.

“It is also conceivable that the plaintiffs do not know the presence of the defendants (the timber companies).

Justice Balia answered the first question of law in the negative, that the encroachment of the land is a violation of their constitutional right to the land and livelihood, where they no longer possessed or had abandoned them.

“Hence, we allowed the appeal with costs,” he said.

Justice Arifin allowed the parties to impose RM10,000 costs to be paid each to the timber companies.

The other judges who heard the appeal were Federal Court judges Justices Hasan Lah, Abu Samah Nordin and Azahar Mohamed

Racha was represented by Joshua Baru while JC Foong appeared for the Sarawak Forestry Department and the state government.

Four companies

Racha and the others named Ravenscourt Sdn Bhd, Billion Venture Sdn Bhd, Limba Jaya Timber Sdn Bhd, Kubang Sri Jaya Sdn Bhd, director of Forests Sarawak, and the Sarawak government as the defendants.

They claimed the land was part of their NCR land and that they were never consulted by the Sarawak government when timber and planting licences were awarded to those companies.
 
They further alleged that their sources of food, wild produce, irrigation, medicine as well as their living space, sacred grounds and recreational grounds were seriously threatened by the encroachment into their land.
They therefore sought a declaration that they had acquired and inherited native title of the NCR for the land, that the awarding of the licences to the companies violated their rights, and that the Sarawak government, in giving the licences, was wrong, unlawful and acted illegally.

The residents sought an injunction to restrain the companies from trespassing, encroaching or developing the land with machines. They also sought damages.

One of the companies, Billion Venture, was in the limelight four years ago, following an expose by international NGO Global Witness, in which the company lawyer was caught on video trying to strike a deal with a 'foreign investor'.

Tuesday, March 14, 2017

Affirmative action is morally wrong

March 14, 2017

As long as ethnic-based affirmative action remains, we will continue to be a society operating in a downward spiral of suspicion and discomfort about each other.
COMMENT
Wan-Saiful-Wan-Jan_rakyat_melayu_6
By Wan Saiful Wan Jan

Anyone interested to objectively study the topic of affirmative action must read the seminal book by Thomas Sowell entitled “Affirmative Actions Around the World”. The global study of affirmative action was published by Yale University Press in 2004, and it is probably still one of the most authoritative studies on the topic until today.

Sowell said in the book: “Some groups in some countries imagine themselves entitled to preferences and quotas just because they are indigenous ‘sons of the soil’, even when they are in fact not indigenous, as the Sinhalese in Sri Lanka and the Malays in Malaysia are not.”

This is a very strong statement. Sowell commented specifically about Malaysia. And he said that the Malays are claiming the right to preferential treatment through affirmative action because they are indigenous, even though they are not really indigenous to this land.

When affirmative action was implemented through the New Economic Policy (NEP), it was done with all the good intentions. Our second Prime Minister Tun Abdul Razak Hussein had a very good intention to rectify what he saw as structural weaknesses faced by our country at that time.

But as time went by, despite the original good intention, the affirmative action policy turned into an ugly beast.

What was supposed to be a temporary assistance programme evolved into a sense of entitlement, and then morphed into a monster called Malay rights that cannot be debated, let alone be removed.

I believe the affirmative action that was introduced by Tun Razak has evolved into something that even he himself would not recognise today. I cannot fathom that Tun Razak imagined one day his affirmative action ideas would ignore the fact that there are poor non-Malays too. He was more inclusive than that.

Quite a few people try to defend affirmative action on the basis that there is data showing it works. They produce sets of numbers and charts to show how some Malays have been moved out of poverty due to our affirmative action.

It is not difficult to show data saying affirmative action has worked. In fact, I myself am one of the beneficiaries of the affirmative action policies.

If I want to buy a property, I have the option of going for the discounted Bumiputera lots. Many readers will never be able to enjoy that privilege. There are some educational institutions that I can send my children to that many of you can’t.

There are many other examples that I can give of how I am more privileged that most readers just because of the colour of my skin, but I think those examples are enough to illustrate my point.

Indeed the affirmative action policy has helped me come to where I am today. I am not super rich. But I am comfortable. But just because I benefited does not make it morally right.

There are many people who need the help more than me but do not qualify because they are born Chinese. This is why the affirmative action system that we have today is morally wrong. How can it ever be morally justified for us to discriminate based on the colour of our skin?

No matter what data you present, what is morally wrong is still wrong.

To give a very simplified analogy, imagine a poor person and a rich person walking next to each other. The best way to statistically make these two people equal is by “legalising robbery” so that a poorer person can “legally rob” a rich person, as long as the amount taken makes both of them equal. Then inequality would be zero.

So, here we have solid data to suggest that to eradicate inequality, we should simply “legalise robbery”. Yet the fact remains that taking someone’s property by force is wrong regardless of the outcome. Clearly, even if the data says it works, a morally wrong action is still wrong.

The same applies to affirmative action. Perhaps, it does not involve robbing one person to help another. But it is still discrimination. Even if data shows it works, discrimination is morally wrong. We must not create excuses to justify discrimination.

Unless we accept that we need to urgently re-examine our policies to ensure there is no ethnic-based discrimination, we will never be able to build a unified nation.

As long as ethnic-based affirmative action remains in place, we will continue to be a society operating in a downward spiral of suspicion and discomfort about each other’s culture. The pervasiveness of ethnic-based discrimination in our society is sowing distrust among fellow citizens.

Unfortunately, today any politician who tries to present a different vision is unlikely to win. It is more likely that he will get into trouble with voters and perhaps even the authorities.

To add to the complication, looking at the situation in our country today, I also feel that only a Malay can talk about abolishing affirmative action in Malaysia. Things will only become worse if a non-Malay were to champion this issue.

Because of that, even though many people can see that the affirmative action that we have today is discriminatory and morally wrong, we might be stuck with this problem for the foreseeable future.

I still cannot see any of the Malay political leaders being brave enough to challenge the status quo and correct this moral injustice. Every single one is too busy thinking about the short-term gain of winning the next election only.

Wan Saiful Wan Jan is the chief executive of the Institute for Democracy and Economic Affairs, Ideas.
This commentary was first published in Sin Chew Daily.

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~ Free Malaysia Today

Rafizi: Najib's petrol income spending highest of all PMs

Zikri Kamarulzaman     Published     Updated
PARLIAMENT Prime Minister Najib Abdul Razak has spent more of the country's petroleum income since taking office in 2009, than any of his predecessors including Dr Mahathir Mohamad, claimed a PKR lawmaker.

Rafizi Ramli (PKR-Pandan) said Najib was the "champion of champions" and had spent RM376 billion of the country's petroleum income between 2009 and 2016, or an average of RM54 billion per year.

"Mahathir, who was PM for 22 years, spent RM163 billion, or RM8 billion a year," Rafizi told the House today.

Rafizi said this figures were based on data provided by the Treasury Department, on petroleum dividends, oil royalties, and petroleum revenue from 1970 to 2016.

He later clarified with Malaysiakini that the Treasury figures did not take into account inflation and currency adjustments.

Rafizi said that Najib's predecessor, Abdullah Ahmad Badawi spent RM204 billion of petroleum income, or RM41 billion per year from 2003 till 2009; Hussein Onn spent RM8 billion, or RM1.6 billion a year (1976-1981); and Razak Hussein spent RM1 billion or RM175 milion per year (1970-1976).

Queried by Hasan Ariffin (BN-Rompin) on the price of oil during each premier's time, Rafizi replied that from Razak to Mahathir's time, oil was at about US$20 to US$30 per barrel.
 
Meanwhile, during Abdullah times, oil went up to US$120 per barrel before dropping to US$60 per barrel, while during Najib's time, the price per barrel has fluctuated between US$30 and US$70, and is currently at US$58 per barrel.
"But the matter shouldn't be that when you get windfall you spend all of it.

"When you get windfall you should be saving for your grandchildren," Rafizi added.

He said this while debating the Agong's royal address to parliament.

In his speech, he expressed his agreement with Putrajaya's move to set the price of fuel on a weekly basis starting April.

However he stressed that the ceiling price, must include subsidies.

He then highlighted an election promise by Pakatan Harapan, that if they win in the next elections, they will introduce consumption based fuel subsidies, that will be regulated with the use of MyKads to ensure only Malaysians get the aid.

Inaccurate to say PPBM agrees to Hadi’s bill, says Muhyiddin

 | March 14, 2017

'I have to see the final version of the proposed amendments first,' says party president.
muhyiddin-tuan-ibrahim-1

PETALING JAYA: PAS deputy president Tuan Ibrahim Tuan Man’s claim that Parti Pribumi Bersatu Malaysia (PPBM) has agreed in principle to the proposed amendments to the Syariah Courts (Criminal Jurisdiction) Act 1965, or Act 355, is “inaccurate”.

PPBM president Muhyiddin Yassin, who Tuan Ibrahim claimed had expressed agreement, said today the PAS man had misunderstood what he said during a recent meeting between the two.

“I didn’t make such a statement (agreeing to Act 355).

“I have explained that my stand is to wait and see. Some may have perceived that as me agreeing (to the proposed amendments),” he told a press conference here today.

“Right now, I don’t even know if they will be tabled in the Dewan Rakyat by Hadi, or by Minister in the Prime Minister’s Department Jamil Khir (Baharom),” he said, referring to PAS president Abdul Hadi Awang.

Muhyiddin insisted it was impossible for him to take a stand on the matter when he was unsure of what would be on the bill after it was tabled and debated in the Dewan Rakyat.

“We will wait for it to be tabled. The bill will be debated first, and there may be suggestions for amendments. Until then, it will not be right for me to make a stand.

“How can I agree to the amendments when they are still unclear? That’s why I have to see the final version of the proposed amendments first.”

Hadi’s private member’s bill is scheduled to be tabled in the current Dewan Rakyat sitting.

It was read out twice in the Dewan last year, but both times Hadi postponed tabling the bill, saying he wanted to first make sure the public understood that the amendments would not be applicable to non-Muslims.

Umno appears to support the bill as the party’s minister in charge of religious affairs, Jamil Khir, is expected to adopt it as the government’s bill to allow it to be debated in the Dewan.

Hadi’s bill aims to increase the penalties for shariah offences, including raising the maximum jail term from five to 30 years, the maximum fine from RM5,000 to RM100,000, and maximum strokes of the cane from six to 100.

~ Free Malaysia Today

Monday, March 13, 2017

Orang Asli appeal to get back customary land in Iskandar

 | March 13, 2017

High Court had ruled the community has customary right over the land in the Danga Bay region but judge only awarded compensation, says lawyer Aaron Mathews.
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PETALING JAYA: A group of Orang Asli in Johor who won a suit over their customary land rights will appeal to the Court of Appeal over compensation.

Lawyer Aaron Mathews, a member of the legal team who represented the Orang Seletar community, said their clients were unhappy with the High Court ruling that the state government only pay them damages.

“Our clients want the authorities to return 340 acres of land as outlined in their suit. This is due to their attachment to their traditional territories,” he told FMT.

The disputed land is at Kampung Sungai Temon and Kampung Bakar Batu, located at the Danga Bay region of the Iskandar Development Corridor in Johor.

On Feb 28, justice Teo Say Eng ruled the Orang Asli possessed customary rights to their traditional lands and waters.

However, Teo ordered the state government to compensate the Orang Seletar community for loss of their customary lands, based on their market value under the Land Acquisition Act.

He said the state had registered ownership of the land to seven defendants and this amounted to an acquisition.

Teo, in his oral judgment, held that to order a return of the land from the defendants to the Orang Seletar would be in breach of the right to property under the Federal Constitution.

The court also recognised the Orang Asl had rights over 7,000 acres of their customary waters located in the Danga Bay region of the Iskandar Development corridor.

It also found that the federal and Johor governments were in breach of their fiduciary duty owed to the Orang Seletar community to ensure the protection of their customary areas.

Five years ago, 188 members from the Orang Seletar community in the Danga Bay region filed a civil suit against the Iskandar Regional Development Authority and several other defendants for rights to their customary lands.

The plaintiffs said their customary territories were encroached into by private companies and individuals.

They also said the state was also reluctant to recognise their rights to the customary land and waters.

In the civil suit, the Orang Seletar, also known as Orang Laut, also sought declaratory orders in relation to their communal customary rights and interests in relation to the sea, sea bed, rivers, river beds, tidal inlets, bays, estuaries, harbours and subterranean waters in the Johor Straits.

The Bar Council’s Committee on Orang Asli Rights led by Steven Thiru appeared for the Orang Asli Seletar on a pro bono basis. Others in the team were K Mohan, Yogeswaran Subramaniam, Jessica Binwani and Theiva Lingam.

~ Free Malaysia Today

PKR: Politicians the source of corruption

 | March 13, 2017

Kelana Jaya MP Wong Chen says it is not possible for civil servants to be corrupt without the backing of politicians.
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KUALA LUMPUR: An opposition MP says politicians, not civil servants, are the source of corruption in the country.

“The source of corruption are politicians. The issue is political funding. I am taking a non-partisan stand on this,” said Wong Chen (PKR-Kelana Jaya).

Wong Chen said it was not possible for civil servants to be corrupt without the support of politicians.

“No politicians are arrested. Does that mean civil servants are more powerful?” he said during a debate at the Dewan Rakyat today.

He added that it was important to identify the root cause of the problem allowing corrupt politicians to rise, giving the example of controversial state sovereign fund 1MDB.

“The biggest case is the kleptocracy involving a company that we can’t name here.”

Wong Chen also asked about the annual cost for political parties, saying each party should state the amount needed per year.

“If you can oversee national budget, why don’t you know the amount for your party?

“RM10 million is enough for a party of 500,000 members,” Wong Chen said, adding that this was based on a study he had conducted.

“In that case, Umno doesn’t need RM2.6 billion. RM35 million is sufficient.”

As for the perception that the police are corrupt, Wong Chen suggested that the home ministry invest in body cameras for traffic police as well as police handling organised crime.

He said the constant monitoring would help improve the negative perception against the force.

~ Free Malaysia Today

Jill Ireland case: Court rejects religious body as intervener

March 13, 2017

Lawyer Mohamed Haniff Khatri Abdulla says judge finds Mais has no direct interest to be included as party to the judicial review.
haniff-mais-1

KUALA LUMPUR: The High Court has rejected an application by the Selangor Islamic Religious Council (Mais) to become intervener in Jill Ireland’s judicial review application over her eight “Allah” CDs.

Lawyer Mohamed Haniff Khatri Abdulla said justice Nor Bee Ariffin has only allowed Mais to become an amicus curiae (friend of the court).

“The judge found that Mais did not have a direct interest to be included as party to the judicial review,” said Haniff who represented the religious authority.

Interveners can participate in a proceeding as the outcome may affect their rights while an amicus curiae can only address the court upon invitation.

“The judge has now fixed June 19 to hear the merit of the judicial review,” Haniff told reporters after Nor Bee delivered her ruling in chambers.

On May 11, 2008, the CDs titled “Cara Hidup Dalam Kerajaan Allah”, “Hidup Benar Dalam Kerajaan Allah” and “Ibadah Yang Benar Dalam Kerajaan Allah”, were seized by Customs officers from Ireland, a Melanau, on her arrival at the Low-Cost Carrier Terminal (LCCT) in Sepang.

On Aug 20, 2008, she filed an application for leave for judicial review to reclaim the eight CDs, naming the Home Ministry and government as respondents.

On July 21, 2014, the High Court ordered the Home Ministry to return the CDs to Ireland but did not issue a declaration she had applied for, that she had the right to keep, use and import published materials containing the word “Allah”.

On June 23, 2015, the Court of Appeal upheld the High Court’s decision for the Home Ministry to return the eight CDs to Ireland within one month of the ruling date.

The panel also remitted Ireland’s application for the declaration to the High Court.

~ Free Malaysia Today

Friday, March 10, 2017

BARU BIAN: PAN BORNEO HIGHWAY PROJECT MUST BENEFIT SARAWAKIANS


PRESS STATEMENT
9 MARCH 2017

It is indeed gratifying that the Pan Borneo Highway project is underway after so many years of delay. The long-suffering travellers of Sarawak can at last look forward to safer and shorter road trips.

In the website of the  project delivery partner Lebuhraya Borneo Utara (LBU) website (http://www.panborneo.com.my/), one of the benefits of the projects listed under ‘High Economic Multiplier for Sarawak’ is ‘Jobs creation (direct and indirect)’.

In this regard, I was disappointed to receive reports that young Sarawakian graduates are being bypassed for employment, and that workers are being brought in from West Malaysia and overseas.

The hurdle, as I understand it, is the project delivery partner’s insistence that for technical positions, all recruits must have a minimum of 5 years’ experience. This requirement by LBU applies to all companies who have been awarded the 11 work packages. This condition effectively excludes a large group of Sarawakians who are ready to work but unable to get employment on this project, as the local companies are forced to recruit from outside Sarawak. This involves a few hundred positions that could be filled by Sarawakians.

Not only that, but I was given to understand that employees of the local contractors are tied to the salary scale set by the Ministry of Finance, whilst those employed by LBU are not, resulting in huge salary gaps (up to 50% difference) between Sarawakian employees and those from outside. This disparity is even more pronounced given the higher level of responsibility of the local employees who are tasked with quality control.

Also, I am given to understand that the non-Sarawakian workers are working without work permits and are therefore not covered by insurance whilst carrying out their work. This situation is not acceptable at all, for all parties concerned.

We would like clarification from the Minister concerned and the State Secretary whether this is indeed the case, and if so, we request that job opportunities on this project be extended to Sarawakians first. If they are not given the opportunity to work, how is this project benefitting them, and how are they going to gain experience? The joint venture partners may be Sarawakians but with limitations on the employment of Sarawakians, the only people benefitting are the local bosses and the outstation/foreign employees who send their salaries home.

Baru Bian
Chairman, KEADILAN Sarawak / ADUN N81 Ba’ Kelalan


Tuesday, March 7, 2017

Federal Court dismisses Jawi's appeal in Kassim Ahmad case

Hafiz Yatim     Published     Updated
Academician Kassim Ahmad's three-year predicament with the Federal Territory Islamic Department (Jawi) for allegedly insulting Islam and disobeying a fatwa is nearing an end.

This follows the Federal Court's three-member bench today unanimously dismissing the appeal by Minister in the Prime Minister's Department Jamil Khir Baharom, Jawi and its chief syariah prosecutor.

The apex court refused to grant permission to hear the merits of their appeal against the Court of Appeal's ruling that the arrest and prosecution of the 83-year-old academician was unlawful.

Chief Judge of Sabah and Sarawak Justice Richard Malanjum, who led the bench today, dismissed the questions of law raised by the authorities and the minister concerning jurisdiction and the arrest.

The other two judges were Federal Court judges Justice Zainun Ali and Justice Balia Yusof Wahi.

The apex bench found that the question of jurisdiction had been answered twice, when the Court of Appeal granted leave in Kassim's appeal after leave was not granted by the High Court in Kuala Lumpur, and again by the appellate court, which heard Kassim's appeal and ruled his prosecution and arrest to be unlawful.

Justice Richard asked senior federal counsel Shamsul Bolhassan whether they had appealed to the Federal Court, when leave was granted at the Court of Appeal on the question of jurisdiction, to which the government lawyer replied in the negative, saying the matter was going to the High Court in Kuala Lumpur for the application to be heard on its merit.

The two questions of law posed before the Federal Court were:
  • Whether the civil court can review or cancel the prosecution done in a Syariah Court when the purported offence is against hukum syarak (Islamic precepts); and
     
  • Whether the circumstances of an investigation or arrest process for an offence that was not carried out in compliance with the procedures laid down in the relevant statute would render the charge defective.
Kassim's lawyer Rosli Dahlan (photo) said the two questions involved jurisdiction, which have been decided by the Court of Appeal when it granted leave and also when it heard the appeal on the merits.

Following the decision today, Rosli said they will go to the Syariah High Court on Aug 7 to formally inform the court of the Federal Court decision.

Rosli asked the syariah chief prosecutor and Jawi to use their discretion to properly withdraw the charge, so as to avoid embarrassment.

“Jawi can do so under Section 58 of the Federal Territory Syariah Administration Act. The syariah judge can also grant a discharge, not amounting to an acquittal, under Section 96 of the same Act,” he said.

Shamsul told Malaysiakini that the discretion is still with the chief syariah prosecutor.

According to Bernama, the court also ordered the appellants to pay costs of RM20,000 to Kassim.

Kassim was charged in the Syariah High Court in Putrajaya with three counts of deriding Islam and a charge of breaching a fatwa in a talk he gave in Putrajaya three years ago.
 
Following the talk, Kassim was arrested by Jawi at his house in Kulim, Kedah, taken to Penang and escorted on a flight to KLIA Sepang, where he was detained for more than 24 hours without legal representation.
Kassim challenged his arrest and the charges against him in the civil High Court, but failed. The court ruled that his remedy could only be found in the syariah court.

On appeal to the Court of Appeal, the octogenarian's arrest at his home in Kulim, Kedah, and bringing Kassim to Kuala Lumpur to be charged were declared illegal and the arrest was also ruled to be null and void.

Following that, the Court of Appeal also held that his arrest, detention and prosecution were null and void.